United States District Court, S.D. Illinois
August 11, 2005.
THEODORE JOHNSON, Petitioner,
JOSEPH SCABANA, Respondent.
The opinion of the court was delivered by: G. PATRICK MURPHY, Chief Judge, District
MEMORANDUM AND ORDER
Petitioner filed this action pursuant to 28 U.S.C. § 2241 to
challenge the validity of his sentence. He is currently serving a
sentence imposed in this District on May 19, 2000. See United
States v. Johnson, Case No. 99-CR-30022-DRH (S.D. Ill., filed
Feb. 23, 1999). The Court notes that Petitioner has already filed
two unsuccessful § 2255 motions in this District. See Johnson v.
United States, Case No. 01-CV-306-DRH (S.D. Ill., filed May 14,
2001), appeal dismissed for lack of jurisdiction, Appeal No.
04-4001 (7th Cir., decided Dec, 17, 2004); Johnson v. United
States, Case No. 04-CV-488-DRH (S.D. Ill., filed July 14, 2004).
This case now is before the Court for a preliminary review of
the petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases in United States District Courts. Rule 4 provides that
upon preliminary consideration by the district court judge, "[i]f
it plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in
the district court, the judge shall make an order for its summary
dismissal and cause the petitioner to be notified." Rule 1(b) of
those Rules gives this Court the authority to apply the rules to
other habeas corpus cases. After carefully reviewing the petition in the
present case, the Court concludes that Petitioner is not entitled
to relief, and the petition must be dismissed.
A court should not entertain a petition for a writ of habeas
corpus from a federal prisoner unless it has jurisdiction over
the petitioner or his custodian. Brittingham v. United States,
982 F.2d 378, 379 (9th Cir. 1992); Hanahan v. Luther,
760 F.2d 148, 151 (7th Cir. 1985). This Court does not have
jurisdiction over either. It is clear that Petitioner is
currently incarcerated in the Federal Correctional Institution in
Oxford, Wisconsin, which is situated in the Western District of
Wisconsin. See 28 U.S.C. § 130(b). The Court could transfer
this action to the Western District of Wisconsin, as that is the
proper venue for this § 2241 petition. However, the Court sees no
point in wasting judicial resources, as such a transfer would
only delay the inevitable dismissal of this action.
Normally, a person may challenge his federal conviction only by
means of a motion brought before the sentencing court pursuant to
28 U.S.C. § 2255, and this remedy normally supersedes the writ of
habeas corpus. A Section 2241 petition by a federal prisoner is
generally limited to challenges to the execution of the sentence.
Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998);
Atehortua v. Kindt, 951 F.2d 126, 129 (7th Cir. 1991). See
also Waletski v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994)
("prisoner who challenges his federal conviction or sentence
cannot use [§ 2241] at all but instead must proceed under
28 U.S.C. § 2255.").
Occasionally, a petition challenging the conviction may be
brought pursuant to 28 U.S.C. § 2241 if the remedy provided by
28 U.S.C. § 2255 is inadequate or ineffective. However, the fact
that Petitioner has not been, or may not be, granted leave to
file a second or successive petition under § 2255 does not mean
that § 2255 cannot provide an adequate or effective means by
which to challenge his conviction or sentence. See In re Davenport,
147 F.3d 605, 609 (7th Cir. 1998).
In this case, Petitioner claims ineffective assistance of
counsel, and he challenges the manner in which his sentence was
calculated. Although he does not refer to any case law, the Court
guesses that, like many other inmates, he places his reliance
upon United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005).
That reliance is misplaced, because the Seventh Circuit has held
that "Booker does not apply retroactively to criminal cases
that became final before its release on January 12, 2005."
McReynolds v. United States, 397 F.3d 479, 481 (7th Cir.
2005). See also Curtis v. United States, 294 F.3d 841, 843
(7th Cir. 2002) (Apprendi does not apply retroactively on
collateral review). It is beyond question that Petitioner's
conviction was final long before January 12, 2005. Therefore, he
is not entitled to the relief sought, whether he seeks it in this
District, the Western District of Wisconsin, or any other federal
In summary, this habeas action does not survive review under
Rule 4 and, accordingly, this action is DISMISSED with
IT IS SO ORDERED.
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